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Increasing frustration

In a recent advisory opinion, the North Carolina Judicial Standards Commission emphasized that a judge’s repeated or unjustified tardiness in opening court sessions violates ethical rules and can lead to the imposition of judicial discipline. North Carolina Formal Advisory Opinion 2017-2. (North Carolina is one of 9 or so states in which the judicial discipline commission also acts as the judicial ethics advisory committee.) The opinion explained:

Delay is one of the most common complaints of judicial misconduct, whether it arises from excessive grants of continuances, delays in rendering decisions under advisement, lengthy periods of time in issuing written orders, or the judge’s regular tardiness in appearing at scheduled court times. These delays raise the costs of litigation, increase frustration with the judicial system and diminish public confidence in the courts.

Poor communication about when the judge will arrive and the reasons for the delay heightens frustration among individuals present in the courtroom, many of whom have taken time away from work or traveled long distances to appear at the required time under threat of sanction if late. In these circumstances, when a judge repeatedly or unjustifiably fails to open court on time, the attending frustration impairs public confidence in the courts.

The opinion added that, “if a recess is required to attend to other official business that must be considered before the court session continues, the judge should as a best practice open court on time and communicate either personally or through court staff to those present in the courtroom when court will be reconvened and the reasons for the recess.”

In January, approving a stipulation for discipline by consent and the judge’s agreement to resign, the California Commission on Judicial Performance publicly admonished a judge for, in addition to other misconduct, frequently arriving to court after the calendar over which she presided was scheduled to start, including 3 times when she arrived 30 minutes late. In the Matter Concerning Johnson, Decision and order (California Commission on Judicial Performance January 16, 2018).

Between January 1, 2013 and August 10, 2015, on days the judge had calendars set to begin at 9:00 a.m., she arrived at the courthouse (not her courtroom or chambers) after 9:00 a.m. at least 42 times. While in most of these incidents the judge arrived at the courthouse within 10 minutes of 9:00 a.m., several involved longer periods, and typically there was additional delay between the time the judge entered the courthouse and the time she took the bench. On each of these occasions, the Commission found, the judge’s tardiness caused numerous people who were at court on time, including parties, attorneys, and court personnel, to have to wait for her to take the bench.

In 2015, a Special Court of Review Appointed by the Texas Supreme Court reprimanded a judge for, in addition to other misconduct, a pattern of leaving the bench and failing to communicate with counsel and defendants about when or whether she would return. In re Mullin, Opinion (Texas Special Court of Review October 21, 2015). The judge often “left the bench with matters still to be heard” and “those remaining in the courtroom could not discern whether to go (as waiting would be futile) or stay (because the judge might return, though no one could say when).”

The Court noted that a judge is permitted to leave the bench for many reasons and “taking breaks is a matter within the judge’s discretion.” However, it explained:

The first principle of courtesy is consideration of others. Though a judge need not disclose why she is leaving the bench or what she will be doing while she is gone, common courtesy requires a judge to let those waiting to be heard know whether and when she anticipates returning. By persistently leaving the bench for extended periods of time without communicating this basic information to those in attendance, the respondent showed a lack of consideration for court-goers and thus failed to act with the courtesy expected of a judicial officer. . . .

See also In the Matter of McVay, Judgment and Order (Arizona Supreme Court September 25, 2007) (60-day suspension without pay for, in addition to other misconduct, arriving in the courtroom between 5 and 18 minutes after her calendar was scheduled to begin 20% of the time); Williams, Amended order (Arizona Commission on Judicial Conduct December 9, 2010) (public reprimand for consistently failing to appear for work on Wednesdays and Fridays except to perform weddings in the evenings for a fee); Doan v. Commission on Judicial Performance, 902 P.2d 272 (California 1995) (removal for, in addition to other misconduct, habitual tardiness in commencing court sessions by an hour to an hour and a half); Inquiry Concerning Woodard, 919 So. 2d 389 (Florida 2006) (public reprimand for, in addition to other misconduct, frequently starting scheduled first appearance hearings late); Inquiry Concerning Albritton, 940 So. 2d 1083 (Florida 2006) (reprimand for, in addition to other misconduct, on a continuing basis, being late to hearings and trials and taking purported 15 minutes breaks but not returning for 1-2 hours); Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012) (public reprimand for, in addition to other misconduct, being habitually tardy for hearings, first appearances, and trials, often for more than 15 minutes and often without good cause); In re Alford, 977 So.2d 811 (Louisiana 2008) (removal for, in addition to other misconduct, a pattern of absenteeism and appearing late for court); In re Nettles-Nickerson, 750 N.W.2d 560 (Michigan 2008) (removal for, in addition to other misconduct, excessive absences, commencing proceedings late, and untimely adjournments); In the Matter of Cahill, Public reprimand and conditions (Minnesota Board on Judicial Standards April 21, 2014) (public reprimand for, in addition to other misconduct, being chronically late for court); In re Merlo, 58 A.3d 1 (Pennsylvania 2012) (removal for, in addition to other misconduct, repeatedly failing to appear or consistently appearing late for scheduled court proceedings); In re Lokuta, 11 A.3d 427 (Pennsylvania 2011) (removal for, in addition to other misconduct, being habitually and egregiously late for court and frequently absent from the courthouse).